Bing & Bing & Anor (No 4)

[2009] FamCA 1028

FAMILY COURT OF AUSTRALIA

BING & BING AND ANOR (NO. 4) [2009] FamCA 1028

FAMILY LAW – COSTS – intervener entitled to costs notwithstanding unsuccessful in opposing an application for review of a registrar’s decision out of time

Family Law Act 1975 (Cth)

APPLICANT: Mr Bing

RESPONDENT: Ms Bing

INTERVENOR: Rockman & Rockman

FILE NUMBER: MLF 1745 of 2006

DATE DELIVERED: 28 OCTOBER 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: BY WAY OF WRITTEN SUBMISSIONS

SUBMISSIONS RECEIVED FROM:

COUNSEL FOR THE APPLICANT: MR WALMSLEY

SOLICITOR FOR THE APPLICANT: BUXTON & ASSOCIATES

COUNSEL FOR THE INTERVENOR: MR BLOCH

SOLICITOR FOR THE INTERVENOR: ROCKMAN & ROCKMAN

Orders

1. That the wife pay the costs of Rockman and Rockman of and incidental to the proceedings in which the wife sought to review the decision of Registrar Riddiford made on 8 April 2009.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment under the pseudonym Bing & Bing and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1745 of 2006

MR BING

Applicant

And

MS BING

Respondent

And

ROCKMAN & ROCKMAN
Intervener

REASONS FOR JUDGMENT

1. On 1 October 2009 I gave the wife conditional leave to review a registrar’s decision about an assessment of costs. 

2. The wife’s application sought an indulgence because she was out of time.  To the extent that the wife obtained leave, albeit on conditions, she was successful but it could hardly be said that the intervener who opposed the extension of time was wholly unsuccessful.

3. The intervener now seeks an order for costs against the wife. 

4. The intervener who was the wife’s former legal practitioner is a party to the proceedings.

5. The substantive proceedings between the husband and the wife relate to a property dispute and it would seem to be common ground between them that the assets are substantial.

6. The law relating to costs is set out in s 117 of the Family Law Act 1975 (Cth). It provides that each party pays their own costs except in circumstances where the Court finds that it is justified in departing from that rule and if so, the Court must take into account the matters set out in s 117(2A) and otherwise make an order that the Court considers just.

7. The intervener submitted that the justifying circumstances were that the wife had to apply for leave to review the registrar’s decision because of her own dilatory conduct and as a consequence, the intervener was an involuntary respondent.  A number of other matters were raised which in my view are not relevant for the purposes of this determination. 

8. In reply, the wife said that there was no justification for an order for costs or alternatively, the costs should be reserved to the completion of the review to be conducted by the registrar (presupposing that the other conditions of the orders that I made were met).

9. The basis of the wife’s submission is that the essence of the dispute with the intervener relates to costs and therefore the costs of this application are somehow part of that dispute.  The wife argued that the intervener had not done anything for the wife when acting for her, to enforce significant “Barro” orders.  She said that when the costs account was delivered to her, the intervener as a senior legal practitioner took the steps to obtain what might be described as a judgment by default without contacting the lawyers for the wife and that was contrary to what might be called “traditional professional courtesy”.

10. The wife’s position was that when the review ultimately takes place, the result might very well cast relevant new light on the reasons why the intervener chose to ignore the unexpected silence of the wife’s solicitors during the final two months of the assessment process.

11. A number of other matters were raised by the intervener which do not affect my determination.

12. There is a justification in this case for the making of an order for costs against the wife.  That is that the wife made the application seeking a considerable indulgence.  That is evident from what I said in the reasons for allowing her time to review the registrar’s decision.

13. In my reasons for granting her application I said the following:

    8.…an “unfortunate and unforgivable breakdown occurred between the solicitor and Alan Thompson”.  Mr. Walmsley said that this breakdown led to the wife not reacting to the timetable under the Court’s rules.  He said that the delays were inexcusable and what had occurred was no fault of the wife. 

    …

    22.When the solicitor for the wife eventually contacted Rockman & Rockman on 9 June, 2009, it was on the basis of an assertion that the bill (already certified) did not comply with the Family Law Rules 2004. Perhaps again in light of Mr. Walmsley’s concession and his veiled criticism of Rockman & Rockman, this was an aggressive and unreasonable approach.

    ...

    51.However, there is no evidence about why the delay occurred here other than it was the responsibility of the legal practitioners and the costs consultant.  There might be some justification for excusing those delays if there was some correspondence between the wife’s solicitors and Rockman & Rockman asking for indulgences in relation to the course of instructions that the wife had given.  There was none. 

    …

    55.I do not know whether the refusal to grant the indulgence would work an injustice to the wife, because although she says so, I do not know how that is the case…

    …

    57.…In this case, it is not the rules of the court nor the judicial process which gives rise to the question of prejudice to the wife but rather the way in which her case has been presented.  It would be tempting to say that the wife has another remedy against her own advisers but having regard to what I have just suggested, to deny her the opportunity to at least endeavour to get her house in order and challenge the bill of costs on the basis of the conduct of her practitioners, seems to me to be a potential miscarriage of justice…

14. On any view therefore, it was not the intervener who created the problem.  I reject the suggestion of any professional discourtesy by the intervener and I do not see any justification for saying that something in the review may change the ultimate result.

15. When I turn to the provisions of s 117(2A), it is clear that the wife’s financial circumstances are something of a problem at this stage. However, I have been told by the husband and the wife through their respective counsel that there are substantial assets and she will ultimately share in them. It is clear that neither party to the costs dispute is in receipt of legal aid.

16. An application for costs obliges the Court to consider the conduct of the parties in relation to the proceedings generally.  The reasons that I have set out above indicate clearly my views about the absence of any criticism of the intervener.  On the other hand, the wife can hardly claim it was the intervener’s fault when she took the stance either personally or through her lawyers to which I have referred.

17. As I have already pointed out, neither party has been wholly unsuccessful.  However, the wife openly acknowledged the breakdown in communications and therefore the distinction between success and failure has to take into account that she could not succeed without the Court granting her an indulgence.  In my view, the intervener has not been wholly unsuccessful.  Apart from anything else, I have imposed conditions upon the wife which include setting out what in fact is in dispute having regard to the fact that the intervener complained that he did not know what it was that was in dispute in his bill.

18. I have not been advised of any offers in writing.

19. In the circumstances, I see no reason why the wife should not pay the intervener’s costs of and incidental to the proceedings which she instituted. 

I certify that the preceding Nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  27 October 2009